R v Flood

The Facts

1. The facts are set forth in an agreed statement; I shall summarise.
2. He was born in 1952, and at the time of the misconduct was aged between 24 and 25. RA, now known by her married name RC, was born in 1964 and was between the age of 12 and 13 at the time of the offence. The offender is the victim's uncle; he is brother to her mother.
3. Around 1975 to 1976 the victim lived with her family at a property near Boggabri. The offender and his wife visited the property on occasions. During the visit on a date between 30 November 1975 and 1 February 1976 the offender took the victim and at least two other siblings to the river on the property so they could swim. When they arrived the offender told the other two, brothers, to go ahead and they did so. He took the victim beneath a willow tree; he told her to turn around. The victim recalls standing up in a bent position; she does not remember how her pants came down; the offender placed his erect penis in the cleft between her buttock cheeks. The victim recalls that the offender was whistling at the time.
4. There is no indication of ejaculation and the offender is attributed in later representations in terms that he cannot understand or appreciate why he engaged upon the misconduct. It would beggar belief to come to any view other than he was engaged upon the pursuit of sexual gratification, though there is no evidence before me that he in fact achieved that in the course of this misconduct, which upon the description given was within a relatively short timeframe and was the only occasion upon which he has ever been detected in such conduct in his life.
5. In 1984 the victim complained about this event to her husband; that was some eight years or thereabouts after the event. On 5 January 2018 she made a statement to the police force of New South Wales. On 7 June 2018 the victim engaged upon a pretext phone call with the offender. She raised with him the incident and he said, "I don't know. Honestly darl, I don't know why it happened. We just so, we were so close and buddies...it was never meant to fuck happens".
6. On 10 September 2018 he was arrested, he participated in an ERISP, he made admissions as to the misconduct in the following terms, "My penis did touch her back side - swimming and carrying on and, yeah, I just poked my penis down the back of her pants, down her bum crack".

The Offender

1. The offender effectively has no criminal antecedents; there was one traffic matter in 1996 when he was detected driving with middle range prescribed concentration of alcohol. He was given the benefit of a recognisance without conviction pursuant to s 556A Crimes Act 1900 as it then applied and was fined for offences of driving an unregistered and uninsured vehicle. For all intent and purposes he has no criminal record and I put those prior matters to one side.
2. There have been assembled documents presented on behalf of the offender, including a comprehensive report from Patrick Sheehan, forensic psychologist. I would observe that Mr Sheehan is a psychologist who regularly provides reports in proceedings for the determination of sentence. I generally find him to be one upon whom I can rely for truthful, accurate and objective assessment, and thus, though the offender has not given evidence before me, and bearing in mind the caution urged by Smart AJ in R v Qutami [2001] NSWCCA 353, I am satisfied that I can act upon the representations attributed to the offender in this document.
3. At the time of the consultation he was 67 years of age. He arrived at the consultation with his daughter. He suffers from hearing difficulty, and this is after the affliction of industrial deafness. There was no compelling reason to suspect cognitive decline but the psychologist could not discount this possibility in the consultation process.
4. He is the youngest of five children. He grew up in a positive environment in an intact family unit with well functioning parents who modelled positive behaviour. He experienced sexual abuse at the hands of other extended family members between the ages of seven to 14 years. The misconduct involved fondling and exposure. He moved from the family home at the age of 20 when he first married and has lived independently since that time. The historical nature of the misconduct before the Court is discussed; he was ex-communicated from his sister's family from the disclosure of the misconduct some 20 years ago.
5. His education is discussed. He was educated to the ninth grade at Boggabri. He had difficulty at school. He saw himself as "dumb". He was "class clown", but was never sufficiently misbehaved to warrant suspension. He has had a consistent employment history and has a strong work ethic. He worked primarily in farming roles; he acquired skills in mechanics, operating large machinery, welding, fencing and property management. He has worked for a range of employers and has never been unemployed or been a burden on the Commonwealth social security system. He works five days per week. He had been planning to retire but the burden of this prosecution has challenged him financially and he needs to continue working to provide for his retirement later in life beyond his present age approaching 70.
6. He has long-term friendships and has been significantly involved in community. He has recreational interests including repairing antique machines which he shares with a group of local friends; he has been involved in the Clean Up Australia campaign and also with the control of fire. I expect that is in connection with the Rural Fire Service.
7. He has a long-term relationship with his wife to whom he became committed when he was about 17 years of age; they married when he was about 20. They have two children now aged 42 and 45 respectively. Unsurprisingly, the misconduct has caused pressure on his marriage because of the offence and the financial consequence of the prosecution, but his wife remains supportive and she is fearful of his imprisonment should the Court take that course.
8. There is further discussion of his sexual abuse by older males within his family. He has had no other sexual partners throughout his life. He has no sexual interest in children, and could not explain his actions against the complainant. His personal life with his wife is discussed; I do not need to go into the detail of that.
9. There is no history of illicit substance abuse. He unfortunately suffered a diagnosis of myelodysplastic syndrome made in late 2018. He has ceased consumption of alcohol as a consequence of that because of the deleterious impact it would have upon him.
10. There is reference to his industrial deafness. He has cataracts and inactive tear ducts.
11. The investigation of his myelodysplastic syndrome followed upon periods of dizziness, lethargy, bruising, nose bleeds, all of which was secondary to severe anaemia. He was admitted to a private hospital in 2018 for blood transfusion and bone marrow aspirate and trephine biopsy; it was only then that he was diagnosed with the syndrome. It is a bone marrow disorder and is a prelude to leukaemia. He is in need of ongoing care that will continue until at the end of his life.
12. There is no childhood psychiatric history. There is no history of hallucinations or ideas of reference or thought disorder or other symptoms consistent with psychosis. There is no history of psychiatric admission and he has had robust psychological functioning throughout his adult life. He does not meet any diagnostic criteria for paedophilia disorder or any other paraphilic disorder; there is no compelling evidence to suggest any form of personality disorder.
13. The offence is discussed. He said to the psychologist, "It's something I still can't explain to myself. I don't know why I did it". Immediately after the offence he recalled thinking that what he had done was wrong. He felt shame. He was aware of the impact of the offence upon his extended family which has been disrupted for the past 20 years. He accepts that what he did affected the victim for years. She was a small girl and it would have been a shock to have something like this done to her.
14. Risk of re-offending was assessed on the Static 99R. He is found to be at a very low risk category upon static considerations; dynamic factors did not cause any other concern.
15. He is attributed with little insight into the thought processes underpinning the behaviour, which is a reflection of the representations attributed to him. There has never been any formal sex treatment program and he has been clear of misconduct for the past 44 years, and indeed before then.
16. There is a document from Dr Naadir Gutta who writes of the bone marrow disorder with which the offender is burdened. There is a further document from the Goondiwindi Medical Centre by Dr Ronelle Nicholson and this speaks of the continuing syndrome and treatment required by transfusion. The condition is permanent and there is a risk of serious infections, increased by reason of the condition and thus prompt intervention is required. This is particularly relevant at today's point in history; he is at increased risk of the consequence of infection from the coronavirus, which is another matter that I bring to account in the assessment of the punishment required in this case.
17. The offender provided an affidavit; he has not been required for cross‑examination. This has his life history. He grew up in impoverished circumstances as a child. He was the youngest of ten. His father conducted a mail run using a horse and cart and performed casual work. He would be away from the family a week at a time to be able to earn money to provide for them. The home they occupied when he was a child was built out of second‑hand materials. It had running water but no flushing toilet. The toilet facilities, as one might expect in those circumstances, were little more than a hole in the ground.
18. His father ultimately obtained full-time work with New South Wales Railways as a fencer. In due course his father was able to buy an old car which they towed home to be repaired. His father would be required to leave for work on the train on Sunday night and return on Friday night before midnight.
19. Notwithstanding their poverty the family was happy. The parents smoked but did not drink. There was always enough food but as a child Christmas was bleak; no gifts were ever provided because the parents could not afford them.
20. He learned to read and write but he left school at the age of 15 because he was not learning anything. He then provided a history of his employment, the relationship with his wife, and the information that he was able to provide regarding the victim in this matter. He described in para 10 his life as a younger man and his association with his wife's family. The offence is described from para 13 on. He includes the following, "I hadn't planned to do it and to this day I am surprised and ashamed of what I did, which was to ask her to pull her pants down and when she did I pulled my penis out of the side of my shorts...I rubbed my penis on the crack of her backside for about 15 seconds. I stopped and we went back to swimming."
21. The victim's family found out about what happened and he received a phone call from the victim's brother. There was a family meeting, the family set rules. He was to stay quiet about what occurred and stay away from the whole family and out of Gunnedah. This had an impact, which I will bring to account as part of his punishment. His mother lived in Gunnedah, he was not able to visit her and she would need to come to him from time to time. She did not know the reasons why this was required. When she did pass away he did not go to her funeral for that reason.
22. He adopts the contents of the psychologist's report. He speaks to the pretext phone call. He speaks of the victim's presentation in the course of the phone call and how horrified he was at seeing her response. She was crying and distressed.
23. He speaks of his marriage of 47 years and he speaks of the pre‑leukaemia as he described it and the problems it causes for him.
24. His wife provided an affidavit speaking of his qualities and the impact this prosecution has had upon her. She speaks of his community involvement and the impact upon the family, all consistent with what I have spoken to already.
25. There is an affidavit from his daughter who speaks of him in most positive terms as her father, and the impact of what occurred upon them.
26. There is a series of references speaking of the qualities that the offender has demonstrated throughout his life. He should be dealt with as a person of good character in the circumstances with this one aberration which unfortunately he has to bear, as does the victim to whom I shall now refer.

The Victim

1. There is a victim impact statement provided as part of the Crown bundle in this case marked exhibit A. The victim impact statement does not describe matters extending to aggravation. It gives the victim the opportunity to be heard, to put before the offender the impact of the crime upon her, and she is entitled to have the Court hear what she experienced and the effect upon her throughout life. It is now recognised as a consequence of the work done by the Royal Commission into institutionalised child sex that children who are the victims of this type of conduct carry this burden for their entire life, and this must not be overlooked by the courts when dealing with these matters and assessing the objective gravity of the offending under consideration. There is now legislative intervention in that regard and pronouncements by the Court of Criminal Appeal on multiple occasions reminding sentencing judges of their obligation.
2. She writes in her statement of 44 years of struggles and challenge. She notes that the offender will face the consequences of what he did to her when she was 12 years of age and his niece. She valued her family and that was the reason why she stayed silent. But this notwithstanding, the offending has affected her.
3. She writes of the offender knowing that what he did was wrong, that he took her trust, freedom, her happiness, and what she saw as beautiful, and left her feeling shameful, in pain, distrustful, and dishonesty because of the moment of his sexual gratification. She describes the conduct as reprehensible and accepts that she is not responsible in any way for what he did. She speaks of her brain having been changed and of the long, hard financial burden of counselling, travelling, and wasting of time, denial and negative behaviours that have impacted upon her and her family.
4. She speaks of having been re‑traumatised with the details. She again repeats that he is to be accountable for the reprehensible turmoil inflicted upon her, distorting her core values. She has young children who matter to her. She speaks of working hard, the need to continue to deal with what occurred to her, her loss of sleep. She has attended a doctor who referred her to other services. Financially and mentally she said the difficulties escalated. The document towards its end appears to advance the proposition that perhaps by reason of the removal of the offender from her family he has been protected to some extent from the continuing impact upon her of this misconduct. The document was not read by the victim but I have read it closely and summarised what I understand to be her perception of the impact of this crime upon her.
5. There is no psychologist assessment that has been provided in respect of her. The document though does provide a clear reminder of the consequences of this sort of behaviour for children and the extent to which it affects their life thereafter.

Submissions and Consideration

1. The Crown submissions I must say are succinct but comprehensive and very, very fair. I am reminded of the terms of the charge, the maximum penalty and what is now required by s 25AA Crimes (Sentencing Procedure) Act 1999, which provides that in respect of sentencing in child sexual offences the Court must apply the sentencing patterns and practices at the time of sentence, not at the time of the offence, and the Court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing. I have already touched upon that topic.
2. It is the fact that sentences imposed for this type of misconduct in the period when the offence occurred were significantly less than what the courts impose in the modern era. Moreover, Parliament has intervened and has increased penalties and adjusted the terms of the legislation creating these offences to better suit the mischief that this law is meant to address.
3. But for the compelling subjective case that has been presented by those representing the offender I would have come to the view upon the synthesis of objective and subjective material, that the line so called in s 5 Crimes (Sentencing Procedure) Act 1999 would have been crossed, but in the process of synthesis that I am obliged to undertake I have come to the view that is not the appropriate course.
4. The Crown provides the summary of matters that will inform the assessment of objective seriousness that must be made in this case in keeping with what was said in various authorities including Tepania v The Queen [2016] NSWCCA 247, and the guidance given by Johnson J beginning at para [112] of the judgement after his Honour dealt with the significance of the standard non‑parole provisions which are not relevant in this case.
5. I am reminded of the age of the victim at the time and the status as a young adult of the offender, with a gap of some 12 years between their ages. The victim was entitled to the sense of security that she would have otherwise enjoyed on this rural property where she lived with her family and where the offence occurred. He was her maternal uncle and he abused the position of trust that arose by reason of that relationship. He was the only responsible adult present with the children at the river.
6. She was vulnerable by reason of her physical isolation, but that situational vulnerability, in my assessment, I do not take as an aggravating factor. The proposition that he caused the victim to be separated from her brothers has the connotation that there was a measure of planning and organisation in the commission of this crime; I could not come to that view to a standard beyond reasonable doubt. The offence was more, in my view, an opportunistic response in the circumstances that have been described to me.
7. The fact that he was whistling during the assault suggests a greater measure of repugnance to community standards, demonstrating a disregard for the victim's human dignity. That would require a finding that he was whistling for the enjoyment it would provide as part of the process upon which he engaged. There might be a number of reasons why he was whistling in the circumstances, perhaps even nervousness I suppose; I would not conclude to the criminal standard that by whistling he demonstrated a disregard for her human dignity. But that said, the offending conduct demonstrated a disregard for her dignity and must have involved a misuse of her for sexual gratification albeit for a transient period. I agree with the proposition that there must have been sexual gratification as his purpose, and that he was instrumental in causing partial nakedness and her position so that he could engage upon the misconduct described.
8. The Crown concedes that there could not be found any fact to explain motivation during the course of the assault or to define the precise length of time, and it is conceded that the case is to be determined upon the fact that his penis came into contact with her skin but not against her anus or genitalia. This does not it is said necessarily mitigate objective seriousness but it sets the parameters of the misconduct under consideration.
9. There can be no question that there have been consequences for the victim, as one unfortunately comes to see in cases involving this sort of behaviour. The Crown concedes there is no basis upon which the Court could find that there was planning. I am reminded of authority, including MJR (2002) 54 NSWLR 368 and the judgement of Spigelman CJ, and DBW v R [2007] NSWCCA 236, again a judgement of Spigelman CJ, and R v King [2009] NSWCCA 117 at para [41].
10. I had regard to the material provided by the victim within the parameter of s 25A(3) Crimes (Sentencing Procedure) Act 1999.
11. The Crown concedes a 25% discount for the utilitarian value had there been a custodial sentence to be imposed. The plea was entered on the first day of trial but a plea offer had been made and rejected by the Crown when the matter was in the Local Court, and thus he would be entitled to the discount for utility of that level were he to be sentenced today.
12. The Crown submits that he did not show remorse during the assault. It would appear to be so, but I am satisfied that since then, indeed for some 20 years, he has expressed himself in terms of remorse and contrition for the misconduct upon which he engaged.
13. The proposition that he was content to conceal his offending for decades must be qualified. He was under no obligation to go forward to the authorities, and expose his misconduct. Had he done so, of course, it would have stood to his credit but he does not carry correspondingly a burden for not reporting himself to the authorities. It is not to be overlooked that his extended family were aware of what had occurred. He acknowledged his wrongdoing to them and he suffered the consequences of estrangement from them, including limited contact with his mother, at whose funeral he could not attend.
14. Delay is addressed by the Crown. I do not find delay as a matter of great significance in this case; it is notorious that children can be late in bringing matters forward for various reasons now recognised. In this case of course the victim surrendered to the wishes of her family so as not to attract further interest. They imposed upon the offender the obligation to remain quiet about what had occurred but at some point the complainant decided to bring the matter to the attention of the police in 2018.
15. He has lived some 20 years knowing that he had been uncovered within the limited context described. Perhaps he has been able to take some comfort knowing that after all those years it was unlikely that the matter would find its way into the purview of authority charged with investigating such matters, and been able to pursue his life and his relationships with his family to the age of 68, but he has now been called to account for the wrongdoing. Although this is an offence of some age I do not hold it to be a stale offence and there are clear explanations in my view for the delay, which the offender must simply bear as a consequence of his wrongdoing and the time it has taken to bring the matter forth.
16. I am reminded of the purposes of sentencing; there must be punishment. For a man of his age and his status in the community to be faced with a conviction for a child sexual assault carries with it significant ignominy and he will be subject to a community corrections order for a period of three years from today. I am satisfied that bringing into account all of the matters that I have to consider that is appropriate punishment in this case.
17. General and specific deterrence have their role to play. Rehabilitation is to be promoted. I am satisfied on the material I have that there is little or no prospect of re-offence. He is to be made accountable and I believe this process will do so. I have no difficulty denouncing his conduct, it was reprehensible, as is all child sex offending; and one must recognise the harm that has been done to the victim of this crime and the burden she has had to carry throughout her life.
18. In the very comprehensive submissions provided on behalf of the offender, I am reminded of the circumstances of the offence and his acknowledgment; the reasons for which a sentence of imprisonment can be imposed; the authorities which deal with the assumption of harm to children who are the victim of such crimes. I agree with the submissions regarding mitigating factors with regard to planning and organisation, his prior record and his good character.
19. It is submitted that s 21A(5) Crimes (Sentencing Procedure) Act 1999 has no role to play because the Court would not find that his prior good character was of assistance in the commission of the offence; I agree with that submission, I accept it.
20. There is a plea of guilty as noted and significant reliance has been placed upon delay in the course of these submissions, but once again, I note that although he had no obligation to do so he could have brought this matter forwards if he had wished, he has had the opportunity to avoid official sanction for his misconduct, and has had the opportunity to make his life, and there is no evidence before me upon which I could find that he has been waiting for the sword to fall upon him.
21. I note his advanced age and his diminished health, there would be hardship in custody were he to go to gaol. The hardship on his family is noted but I am not satisfied that that is of such exceptional nature that it would justify other than a custodial sentence were he to be found to be appropriate for imprisonment. I note however as part of the factual matrix upon which to assess sentence that the burden upon his wife, should he be incarcerated, would be significant. They live in a remote location without ready access to health care facilities. She has a heart condition and high blood pressure. She does not drive other than locally and has poor night vision, and she cannot drive at night time. Thus, the hardship that she would experience, though not exceptional and bearing in mind she has two children of adult age is material I bring to account.
22. I accept that there would be hardship in gaol for him by reason of his compromised health and what is said to the likely development of this disease as time progresses. He is at greater risk of infection which in the present climate is a matter that must be brought to account. That is a reference to the coronavirus which is so burdening the world at the present time.
23. I have noted his bail conditions, they are not so draconian I would have thought, but they are matters that he is entitled to have brought to account. He has been subject to the apprehended violence order that was put in place for the protection of the victim.
24. Having brought all of that material together I am satisfied that it is a matter that can be dealt with other than by way of a custodial sentence upon consideration of s 5 Crimes (Sentencing Procedure) Act 1999.
25. I require the offender to face conviction for this offence.

Orders

1. The offender is convicted of the crime to which he pleaded guilty. I specify a Community Corrections Order for a period of 3 years commencing today. The conditions shall be the standard conditions set forth in s 88 Crimes (Sentencing Procedure) Act 1999. Thus, he must not commit any offence and he must appear before Court if called upon to do so at any time during the term of the Community Corrections Order.
2. I specify that the Community Corrections Order is to be supervised but allowing for the powers that are available to Community Corrections now, once he reports for that purpose I would expect they would suspend the supervision requirement, after which it will be a matter for him to maintain, as he has done, a lawful lifestyle. If he does so he will not be burdened by any further action by those officers.
3. I should say that on the present arrangements the requirement is that there be contact by telephone with the relevant Community Corrections office against the risk of transmission of this global disease that is now affecting us all.
4. I'll leave the exhibits on file for such purposes as the parties might require and thank you all for your assistance in the matter and, Mr Flood, good luck for the future.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 October 2020